B-182252, JAN 24, 1975

B-182252, JAN 24, 1975

FAILURE OF LOW BIDDER TO FORMALLY ACKNOWLEDGE AMENDMENT TO INVITATION FOR BIDS WHICH EXTENDED BID OPENING DATE AND MADE MATERIAL CHANGE IN SPECIFICATIONS, MAY BE WAIVED AS MINOR INFORMALITY WHERE BID ITSELF INCLUDES ONE OF ESSENTIAL ITEMS APPEARING ONLY IN AMENDMENT INDICATING AN IMPLIED ACKNOWLEDGMENT OF RECEIPT OF AMENDMENT WHICH PREVENTS FINDING OF NONRESPONSIVENESS. MOREOVER, WHERE AMENDMENT MERELY EFFECTS A DECREASE IN THE COST OF PERFORMANCE, FAILURE TO ACKNOWLEDGE AMENDMENT MAY BE SIMILARLY WAIVED AND AWARD MAY BE MADE ON BASIS OF BID AS SUBMITTED.

IMPERIAL FASHIONS, INC.:

INVITATION FOR BIDS (IFB) NO. DSA100-74-B-1646, ISSUED BY THE DEFENSE SUPPLY AGENCY'S DEFENSE PERSONNEL SUPPORT CENTER (DPSC), PHILADELPHIA, PENNSYLVANIA, SOLICITED BIDS FOR THE FURNISHING OF 27,090 MEN'S BROWN LEATHER FLYERS' JACKETS. THE IFB WAS AMENDED TWICE PRIOR TO THE OPENING OF BIDS. ON JULY 11, 1974, AMENDMENT NO. 0001 TO THE IFB WAS ISSUED EXTENDING THE BID OPENING DATE FROM JULY 26, 1974, TO AUGUST 5, 1974. AMENDMENT NO. 0002, ISSUED ON AUGUST 1, 1974, FURTHER EXTENDED THE BID OPENING DATE TO AUGUST 15, 1974, AND REVISED THE SPECIFICATIONS TO DELETE THE USE OF "GOATSKIN" KK-L-170 IN THE FABRICATION OF THE ITEM AND TO SUBSTITUTE THEREFOR "CATTLE HIDE LEATHER" KK-L-162. THIS CHANGE RESULTED FROM THE RISING COSTS OF IMPORTED GOATSKIN LEATHER. THE RECORD INDICATES THAT ALL OF THE FIRMS ON THE BIDDER'S LIST WERE INFORMED OF AMENDMENT 0002 BY MESSAGE DATED AUGUST 1, 1974, AND IN ADDITION, FIVE OF THE FIRMS SOLICITED, INCLUDING THE INTERESTED PARTIES TO THIS PROTEST, WERE CONTACTED TELEPHONICALLY BY THE CONTRACTING OFFICER WHO VERIFIED THE ISSUANCE OF AMENDMENT NO. 0002.

WHEN THE BIDS WERE OPENED ON AUGUST 15, 1974, THE CONTRACTING OFFICER DISCOVERED THAT LONDONTOWN CORPORATION (LONDONTOWN) AND BRILL BROTHERS, INCORPORATED (BRILL), THE APPARENT LOW BIDDERS, FAILED TO FORMALLY ACKNOWLEDGE RECEIPT OF AMENDMENT 0002 IN THAT NEITHER BID INCLUDED A COPY OF THE AMENDMENT. HOWEVER, UPON FURTHER EXAMINATION OF THE LONDONTOWN AND BRILL BIDS, THE CONTRACTING OFFICER CONCLUDED THAT BOTH BIDS HAD PRESENTED SUFFICIENT EVIDENCE TO JUSTIFY A FINDING THAT THE BIDDERS HAD CONSTRUCTIVELY ACKNOWLEDGED AMENDMENT 0002. BASED ON HIS DETERMINATION THAT THE BIDS, AS SUBMITTED, WERE RESPONSIVE TO THE SOLICITATION, THE CONTRACTING OFFICER ON SEPTEMBER 6, 1974, AWARDED CONTRACTS TO LONDONTOWN AND BRILL.

IMPERIAL FASHIONS, INCORPORATED (IMPERIAL) PROTESTED THE AWARD OF CONTRACTS TO EITHER LONDONTOWN OR BRILL ON THE GROUND THAT THE BIDS SUBMITTED BY THE TWO FIRMS WERE NONRESPONSIVE. SPECIFICALLY, THE PROTESTER ALLEGES THAT NEITHER BIDDER AT THE TIME OF BID OPENING, AFFIRMATIVELY ACKNOWLEDGED IN ITS BID OR BY EVIDENCE SUBMITTED THEREWITH, RECEIPT OF OR AN INTENTION TO BE BOUND BY AMENDMENT 0002 TO THE SOLICITATION.

THE PROCURING ACTIVITY HAS TAKEN THE POSITION THAT LONDONTOWN'S AND BRILL'S IMPLIED ACKNOWLEDGEMENT OF THE SECOND AMENDMENT PRIOR TO BID OPENING HAS BEEN CLEARLY EVIDENCED BY THE FACT THAT BOTH FIRMS SUBMITTED THEIR RESPECTIVE BIDS ON THE APPOINTED DATE SPECIFIED IN THE SECOND AMENDMENT. AN EXAMINATION OF BRILL'S BID SHOWS THAT IT IS DATED AUGUST 13, 1974, JUST TWO DAYS BEFORE THE EXTENDED BID OPENING DATE SET FORTH IN THE SECOND AMENDMENT. MOREOVER, THE RECORD INDICATES THAT BRILL'S SEALED BID ENVELOPE WAS POSTMARKED AUGUST 14, AND RECEIVED BY THE PROCURING ACTIVITY ON AUGUST 15. BRILL AFFIXED TO ITS BID ENVELOPE DPSC FORM 1785, A PRE-PRINTED MAILING LABEL, AND IN THE SPACE PROVIDED THEREFOR INSERTED THE BID OPENING TIME AS "8/15/74 2:00 P.M. E.D.T."

IN REGARD TO THE LONDONTOWN BID, ALTHOUGH IT IS DATED JULY 25, 1974, DPSC OBSERVES THAT THE AUGUST 13, 1974, POSTMARK ON THE SEALED BID ENVELOPE AND THE FACT THAT THE BID WAS RECEIVED AT THE CENTER ON THE APPOINTED DATE FOR BID OPENING, CLEARLY SUBSTANTIATES THAT THE BID WAS SUBMITTED AFTER AMENDMENT 0002 WAS ISSUED AND RECEIVED BY LONDONTOWN. FURTHERMORE, LONDONTOWN'S AUTHORIZED REPRESENTATIVE WAS PRESENT AT THE BID OPENING.

ON THE BASIS OF THE FOREGOING, IT WAS DETERMINED BY THE PROCURING ACTIVITY THAT, ALTHOUGH NEITHER LONDONTOWN NOR BRILL FORMALLY ACKNOWLEDGED AMENDMENT 0002, IT CAN REASONABLY BE CONCLUDED FROM THE BID DOCUMENTS THAT BOTH BIDDERS RECEIVED AND HAD ACTUAL KNOWLEDGE OF AMENDMENT 0002 AND THE CIRCUMSTANCES SURROUNDING THE SUBMISSION OF THEIR BIDS ON THE EXTENDED BID OPENING DATE CONSTITUTED CONSTRUCTIVE OR IMPLIED ACKNOWLEDGEMENT OF THE SECOND AMENDMENT. ACCORDINGLY, WHEN AWARDED A CONTRACT UNDER THE IFB, BOTH BIDDERS WOULD BE BOUND BY ALL THE TERMS AND CONDITIONS OF THE SOLICITATION AND AMENDMENTS THERETO. THE CONTRACTING OFFICER, THEREFORE, WAIVED THE FAILURE OF LONDONTOWN AND BRILL TO FORMALLY ACKNOWLEDGE AMENDMENT 0002 AS A MINOR INFORMALITY UNDER ARMED SERVICES PROCUREMENT REGULATION (ASPR) SEC. 2-405(IV)(A) (1974 ED.) INASMUCH AS BOTH BIDS WERE SUBMITTED ON THE REVISED BID OPENING DATE CONTAINED IN THE AMENDMENT.

IT HAS LONG BEEN THE POSITION OF THIS OFFICE THAT THE FAILURE OF A BIDDER TO ACKNOWLEDGE, PRIOR TO BID OPENING, RECEIPT OF AN AMENDMENT WHICH CONTAINS A MATERIAL REQUIREMENT RENDERS THE BID NONRESPONSIVE. B 177747, APRIL 11, 1973. HOWEVER, ASPR 2-405(IV)(A) (1974) ED.) PROVIDES FOR WAIVER OF A BIDDER'S FAILURE TO ACKNOWLEDGE RECEIPT OF AN AMENDMENT IF:

"THE BID RECEIVED CLEARLY INDICATES THAT THE BIDDER RECEIVED THE AMENDMENT ***."

IN THIS REGARD, WE HAVE HELD THAT A BIDDER'S FAILURE TO ACKNOWLEDGE RECEIPT OF AN AMENDMENT TO AN INVITATION MAY BE TREATED AS AN INFORMALITY AND WAIVED WHERE THE BID ITSELF INCLUDES ONE OF THE ESSENTIAL ITEMS APPEARING ONLY IN THE BID AMENDMENT. SEE B-176462, OCTOBER 20, 1972. THAT CASE, WE HELD THAT WHERE A BID REFLECTED A FIRM'S ACTUAL KNOWLEDGE OF THE EXTENSION OF THE BID OPENING DATE, WHICH ACCORDING TO REGULATION, MUST BE ACCOMPLISHED BY THE ISSUANCE OF AN AMENDMENT (SEE ASPR 2-208(A) (1974 ED.)), THE BIDDER WAS CHARGEABLE WITH KNOWLEDGE THAT AN AMENDMENT HAD BEEN ISSUED AND WITH ALL THE INFORMATION CONTAINED THEREIN. SIMILARLY, THE INCLUSION OF THE EXTENDED BID OPENING DATE IN THE BID FORM CLEARLY INDICATES THAT THE BIDDER RECEIVED THE AMENDMENT PRIOR TO BIDDING, AND WHERE THE RECEIPT OF AN AMENDMENT BY A BIDDER IS CLEAR, THE SUBSEQUENT SUBMISSION OF THE BID IS A SUFFICIENT MANIFESTATION OF THE BIDDER'S INTENTION TO SATISFY ALL OF THE GOVERNMENT'S REVISED REQUIREMENTS UNLESS THERE IS SOME EXPRESS QUALIFICATION TO THE CONTRARY. B-179169, DECEMBER 21, 1973.

IN THE INSTANT CASE, THE DATE OF AUGUST 13, 1974, UPON BRILL'S BID; BRILL'S INSERTION OF THE EXTENDED BID OPENING DATE UPON THE BID ENVELOPE; AND THE FACT THAT THE BID WAS RECEIVED BY THE PROCURING ACTIVITY ON THE EXTENDED BID OPENING DATE, CLEARLY REFLECTED THE FIRM'S KNOWLEDGE OF THE EXISTENCE OF AMENDMENT 0002 AND CONSTITUTED AN IMPLIED ACKNOWLEDGEMENT OF THE RECEIPT OF THAT AMENDMENT THEREBY, BINDING THE BIDDER TO PERFORM ALL OF THE OTHER CHANGES ENUMERATED IN THAT AMENDMENT. SEE MATTER OF INSCOM ELECTRONICS CORPORATION, 53 COMP. GEN. 569 (1974).

IN CONTRAST, WE CANNOT CONCLUDE THAT LONDONTOWN CONSTRUCTIVELY ACKNOWLEDGED RECEIPT OF AMENDMENT 0002 BECAUSE NOTHING WITHIN THAT FIRM'S BID EVIDENCED KNOWLEDGE OF THE AMENDMENT. LONDONTOWN'S BID WAS DATED BEFORE THE ORIGINAL BID OPENING DATE, AND WE REGARD THE AUGUST 13 POSTMARK UPON LONDONTOWN'S BID ENVELOPE AS AN EXTRANEOUS CIRCUMSTANCE WHICH DOES NOT NECESSARILY REFLECT KNOWLEDGE OF RECEIPT OF THE AMENDMENT. EVEN IF LONDONTOWN IS DEEMED NOT TO HAVE ACKNOWLEDGED RECEIPT OF AMENDMENT 0002, HOWEVER, FOR THE REASONS STATED BELOW WE BELIEVE THE ACCEPTANCE OF ITS BID WAS PERMISSIBLE.

AS STATED PREVIOUSLY, THE SECOND AMENDMENT WAS ISSUED AS A RESULT OF THE RISING COSTS OF IMPORTED GOATSKIN LEATHER. WE HAVE BEEN ADVISED BY DSA THAT WHILE EITHER GOATSKIN OR CATTLE HIDE WOULD BE EQUALLY ACCEPTABLE FOR USE IN THE JACKETS, THE NAVY CLOTHING AND TEXTILE RESEARCH UNIT DIRECTED THAT THE SOLICITATION'S SPECIFICATIONS BE REVISED TO DELETE THE USE OF GOATSKIN DUE TO THE INCREASED COSTS OF THE MATERIAL. THUS, THE ONLY SIGNIFICANT CHANGE MADE BY AMENDMENT 0002 TO THE SOLICITATION WAS THE RELIEVING OF EACH BIDDER FROM THE REQUIREMENT OF USING THE MORE EXPENSIVE GOATSKIN LEATHER IN THE FABRICATION OF THE JACKETS WHICH, IN TURN, HAD THE EFFECT OF REDUCING THE COST OF PERFORMING THE PROCUREMENT. IN THIS REGARD, OUR OFFICE HAS HELD THAT THE FAILURE OF THE LOW BIDDER TO ACKNOWLEDGE AN AMENDMENT WHICH MERELY EFFECTS A DECREASE IN THE COST OF PERFORMANCE SHOULD BE WAIVED AS A MINOR INFORMALITY. B-171499, MARCH 23, 1971; B-172755, MAY 14, 1971. AS WE STATED IN 41 COMP. GEN. 550, 553 (1962):

"*** IF WE ASSUME THAT THE LOW BIDDER'S FAILURE TO ACKNOWLEDGE THE ADDENDUM WAS DUE TO IGNORANCE OF ITS EXISTENCE, THEN HIS BID PRICE WOULD NOT REFLECT THE LESSENED REQUIREMENTS OF THE SPECIFICATIONS AND, THEREFORE, HIS FAILURE TO ACKNOWLEDGE WOULD ONLY BE PREJUDICIAL TO HIS COMPETITIVE POSITION AND EVEN POSSIBLY BENEFICIAL TO THE POSITION OF THE OTHER BIDDERS."

MOREOVER, IN A SITUATION WHERE THE BIDDER FAILS TO ACKNOWLEDGE AN AMENDMENT HAVING THE EFFECT OF DECREASING THE COST OF PERFORMANCE, THE BIDDER DOES NOT HAVE THE OPTION OF REMAINING SILENT AND NOT RECEIVING THE AWARD, SINCE THE GOVERNMENT PURSUANT TO ASPR SEC. 2-405 (1974 ED.), MAY WAIVE THE FAILURE TO ACKNOWLEDGE THE AMENDMENT AND MAKE AWARD ON THE BASIS OF THE BID AS SUBMITTED. B-172755, SUPRA.

ACCORDINGLY, WE MUST CONCLUDE THAT THERE IS NO ADEQUATE LEGAL BASIS TO QUESTION THE PROPRIETY OF THE AWARD OF CONTRACTS TO EITHER LONDONTOWN OR BRILL, AND IMPERIAL'S PROTEST AGAINST THOSE AWARDS MUST BE DENIED.